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Because We Can
When I first started studying the First Amendment — nearly a decade
ago; yikes, this is a very overdue blog post — I read about the
different theories trying to make sense of it. Some scholars argued
the First Amendment’s goal was to create a robust marketplace of
ideas: if everyone could share their opinion, the truth could come out
through robust debate. Others concluded the First Amendment was a sort
of logical safeguard: by protecting speech and assembly and petitions
for redress of grievances, it guaranteed people the right to work
against laws they disapprove of, kind of the way the Second Amendment
is said to be a bulwark against totalitarianism.
These aren’t just theoretical debates; the theories have practical
consequences for how one interprets that key amendment. If you believe
it’s for a marketplace of ideas, then you will support regulation
aimed at correcting market failures by suppressing certain kinds of
problematic speech. If you believe it’s a political safeguard, then
you will not be too worried about speech regulation aimed at clearly
nonpolitical speech.
Now, I’m not quite sure why such a theory is needed. The First
Amendment always struck me as perfectly clear: “Congress shall make no
law.” No law meant no law (at least with regard to content; I’m more
lenient when it comes to regulating other aspects). But if one has to
have a theory, it struck me the right one was something completely
different: Because We Can.
The Framers were very skeptical of government. The system they
designed was full of checks and fetters, of which the First Amendment
is probably the most extreme (unless you believe in a libertarian
conception of the Tenth). They saw government as a necessary evil;
they were willing to accept it, but they wanted to constrain it where
they could.
And speech is a very obvious way to constrain it. A government needs
to be able to stop violence and make war and so on or its people will
get very badly hurt. But there’s no reason it has to stop speech. As
the old saying goes, sticks and stones may break my bones but words
will never hurt me. Words do hurt, of course, but theirs is a
tolerable pain. People, and society, march on even in the face of
grievous insults. And so the Framers decided to exclude this class of
regulation from the government’s ambit. Not because speech is
particularly good, but because it’s not particularly bad. Because it’s
one thing they could safely exclude. Because we can.
The implications of this theory for interpretation are obvious: they
lead to the most expansive conception of the First Amendment
compatible with the other goals of government: a stable democratic
body to promote the general welfare, and so on. That’s certainly
further than any court heretofore has gone and probably a bit further
than I’d personally prefer, but isn’t that what fetters are for?
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October 20, 2009